Rebecca MacKinnon's postings about work, reading, and ideas from 2004-2011.

November 16, 2011

Last month the U.S. Trade Representative Ron Kirk sent a letter to the Chinese government requesting information about its censorship practices. The middle kingdom’s response: a polite middle finger. Foreign ministry spokeswoman Jiang Yu declared that Chinese censorship follows “international practice.”

Her response is specious given that China operates the world’s most elaborate and opaque system of Internet censorship, as I describe in Chapter 3 of my forthcoming book. Yet Congress has been hard at work to bolster its legitimacy, however inadvertently. The reality is that the PROTECT IP Act now in the Senate, and a new House version called Stop Online Piracy Act (SOPA), would bring key features of China’s Great Firewall to America. Read my opinion piece in the New York Timesfor more details on how these bills would implement technical and legal solutions that would have the unfortunate result of making the Internet everywhere more like the Chinese Internet.

The House Judiciary Committee will hold a hearing on SOPA at 10am on Wednesday morning (a few hours from now). It will be webcast live on the committee website. The video should also be archived there after the event.

Opposition to SOPA is widespread, bipartisan, and international. The Center for Democracy and Technology is collecting links to blog posts, articles, as well as letters of opposition from human rights groups, Internet engineers, law professors, Internet companies, public interest advocates, consumer rights groups, among others. Allan Friedman at the Brookings Institution has an excellent paper explaining how SOPA and PROTECT IP will make the Internet less secure, sabotaging engineers' long-running efforts to increase the level of security in the global domain name system.

The New America Foundation (where I am a senior fellow) has signed an open letter to the House Judiciary Committee, along with a list of human rights, civil liberties and public interest groups. It argues:

We do not dispute that there are hubs of online infringement. But the definitions of the sites that would be subject to SOPA’s remedies are so broad that they would encompass far more than those bad actors profiting from infringement. By including all sites that may – even inadvertently – “facilitate” infringement, the bill raises serious concerns about overbreadth. Under section 102 of the bill, a nondomestic startup video-sharing site with thousands of innocent users sharing their own noninfringing videos, but a small minority who use the site to criminally infringe, could find its domain blocked by U.S. DNS operators. Countless non-infringing videos from the likes of aspiring artists, proud parents, citizen journalists, and human rights activists would be unduly swept up by such an action. Furthermore, overreach resulting from bill is more likely to impact the operators of smaller websites and services that do not have the legal capacity to fight false claims of infringement.

In Chapter 7 I describe my experience testifying at a March 2010 House Foreign Relations Committee hearing chaired by Rep. Howard Berman (D-CA). Berman happens to be one of SOPA’s key sponsors. While the hearing’s stated purpose was to discuss Google’s decision to halt censorship in China and how the United States can support global Internet freedom, committee members devoted considerable time to chastising a Google executive for failing to sufficiently police uploads to YouTube for infringing content. By their standards, YouTube and other similar user-driven sites clearly fall short of SOPA’s requirements. As I point out in the book, The cognitive dissonance on display at that hearing highlighted an inconvenient reality: politicians throughout the democratic world are pushing for stronger censorship and surveillance by Internet companies to stop the theft of intellectual property. They are doing so in response to aggressive lobbying by powerful corporate constituents without adequate consideration of the consequences for civil liberties, and for democracy more broadly.

The public interest letter details some of those consequences:

Relying on an even broader definition of “site dedicated to theft of US property,” section 103 of SOPA creates a private right of action of breathtaking scope. Any rightsholder could cut off the financial lifeblood of services such as search engines, user-generated content platforms, social media, and cloud-based storage unless those services actively monitor and police user activity to the rightsholder’s satisfaction.

In my op-ed I conclude:

The potential for abuse of power through digital networks — upon which we as citizens now depend for nearly everything, including our politics — is one of the most insidious threats to democracy in the Internet age. We live in a time of tremendous political polarization. Public trust in both government and corporations is low, and deservedly so. This is no time for politicians and industry lobbyists in Washington to be devising new Internet censorship mechanisms, adding new opportunities for abuse of corporate and government power over online speech. While American intellectual property deserves protection, that protection must be won and defended in a manner that does not stifle innovation, erode due process under the law, and weaken the protection of political and civil rights on the Internet.

I am not against copyright or intellectual property protection - I'm about to publish a copyrighted book. I hope that people will buy it. Its quality owes a great deal to the editors and other professionals whose job it was to help me shape and refine my argument, and to improve my prose. But I don't believe that the defense of my copyright should come at the expense of civil liberties. It is a moral imperative for democracies to find new and innovative ways to protect copyright in the Internet age without stifling the ability of citizens around the world to exercise their right to freedom of speech and assembly on the Internet.

September 14, 2010

Many companies go on the defensive or go into denial mode, head-in-the-sand mode, and even petulant adolescent mode when confronted by reports like this one in the Sunday New York Times. Not Microsoft. In the face of clear evidence that Microsoft has been used by Russian authorities to crack down on activists under a thinly veiled pretext of intellectual property enforcement, Microsoft reacted in a grown-up, responsible manner. Senior Vice President and General Counsel Brad Smith wrote a long blog post the very next day in which Microsoft accepted full responsibility and accountability for what has happened in Russia, launched an independent investigation, and announced that Microsoft will release a free blanket license for use of Microsoft software by non governmental organizations and take further measures to prevent authorities from raiding NGO offices on vague allegations of using pirated Microsoft software. The NYT follow-up story is here.

We've yet to see the text of the new blanket license. My understanding is that it will not be for global use, but rather is an emergency measure for use in specific countries where the kind of problem described in the NYT story has happened or is seriously likely to happen. Microsoft already has an existing program to donate free and legal software to NGO's which organizations all around the world can avail themselves of.

As a member of the Global Network Initiative (on whose board of directors I currently sit) Microsoft is coordinating closely with several human rights groups to try to ensure that the word gets out about the new blanket license as well as the existing software donation program, and is showing seriousness about making sure that vulnerable groups get the legal information and access to legal advice that they require. Efforts are also being made to make clear to authorities that Microsoft's concerns about piracy should not be used as a tool to crack down on political activism.

While Microsoft has received deserved praise and positive press for its rapid response, it is not escaping criticism. Alan Wexelblat at Copyfight points out correctly that human rights groups have been discussing the over-all problem with Microsoft for some time, but that Microsoft did not act forcefully enough until the bad publicity spurred them into action.

Unfortunately, this is the kind of thing that can happen with a big multinational corporation whose bread and butter depends on the sale of intellectual property. One can easily imagine how the people whose job it is to implement the company's GNI commitments to institutionalize respect and concern for human rights throughout all far-flung branches of Microsoft were not nearly as visible, audible, or powerful in the eyes of Microsoft's local employees and legal counsel compared to those sending a very strong message - with very concrete sets of incentives and disincentives - from headquarters about the need to combat software piracy. Of course, piracy is rampant in Russia and many other countries where human rights violations also happen to be rampant.

Intellectual property law professor Michael Geist discusses the broader problem of messaging and priorities not only by American multinationals but also by the U.S. government, whose trade policies are shaped by heavy lobbying by U.S. companies who are pushing for stronger global IP protections:

While the Microsoft response is a good one, it must be noted the abuse of IP enforcement is surely connected to efforts by the U.S. government and copyright lobby groups to actively encourage Russia to increase its IP enforcement. The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list. The IIPA, the industry lobby group that includes software associations,pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases. In fact, the IIPA complained that Russian authorities do not seize enough computers when conducting raids. On top of all this is the Anti-Counterfeiting Trade Agreement, which will provide Russia with a template to follow on IP enforcement, including new seizure powers with less court oversight.

It has often been pointed out that the ACTA/Special 301 report approach seeks to export tougher enforcement measures - often to countries where free speech is not a given - without including the exceptions, due process, and balancing provisions. The recent Russian case highlights why this is such a dangerous and misguided approach that is apt to cause more problems than it solves.

Denise Howell at ZDNet adds her two cents about the controversial international treaty for intellectual property rights enforcement that the U.S. is negotiating with a select group of countries behind closed doors:

This story seems particularly timely given that finalization of the Anti-Counterfeiting Trade Agreement (ACTA) is imminent. Even without ACTA, a government in search of a pretext has all the tools it needs to ransack or seize computers in the name of protecting foreign copyright holders. ACTA promises to provide a whole new legal infrastructure and justification for such tactics, in addition to the myriad concerns it raises simply if enforced in a non-corrupt, as-intended manner

If the U.S. government's rhetoric about "Internet freedom" is sincere (and there are plenty of cynics who doubt it), it's time to stop sending contradictory, hypocritical messages about policy priorities - saying one thing and then acting in ways that send a rather different kind of message. Otherwise situations like the Microsoft Russia fiasco are just the beginning. It is essential that in the course of protecting intellectual property rights, due process, rule of law, and respect for free expression and privacy must be strengthened instead of eroded. Corporations and the trade negotiators who do their bidding need to understand that eroding democracy abroad and weakening it at home is an unacceptable price to pay for the protection of intellectual property. There has got to be a better and more balanced way forward. Policymakers are going to have to be much more innovative in their approaches to make sure that one policy isn't negating another. Companies need to adapt their business models and business practices not only to the irreversible realities of the Internet age, but also to a global business environment where markets are expanding fastest in places where corruption, thuggery and human rights violations are often the rule instead of the exception. That means taking a much more difficult, uncharted path forward. But the alternative is simply unacceptable.

If the copyright lobby gets their way with the Anti-Counterfeiting Trade Agreement (ACTA) or ifgovernments continue to act on the claim that "piracy" demands sweeping changes to Internet privacy and freedom, then we can generalize the New York Times headline — "Russia Uses Microsoft to Suppress Dissent" — into something we'll surely see more often: "Regime Uses Copyright Violations to Curtail Freedoms."

This episode should remind legislators and policymakers worldwide of the real risk that powers enacted in the name of copyright enforcement can to be used to do real harm. Ensuring balance in copyright law is not just good copyright policy — it's necessary to protect human rights and fundamental freedoms worldwide.

January 19, 2010

Secretary of State Hillary Clinton plans to give a big speech about Internet freedom on Thursday. People are calling on her to speak loudly against Chinese censorship and stand firm for free speech on the Chinese Internet - and elsewhere like Iran. I've been invited to attend and I'm also going to be on a post-game analysis panel. But before the fun and games begin, I might as well add my two cents to the suggestion pile.

The wrong message for Clinton to give on Thursday would be something to the effect of: "Never fear, netizens of China, America is here to free you!"

My dream speech would be about how the Internet poses a challenge to all governments and most companies (except those companies like Google whose business is built around that challenge). I would call on all governments to work together with citizens, companies and each other to build a globally interconnected, free and open network that enhances the lives of everybody on the planet, enables commerce and innovation by big and small players alike, makes everybody richer and freer, and improves all governments' relations with their citizens by making government more transparent, efficient, and thus more credible and legitimate.

I would quote Benjamin Franklin, who wrote in 1759: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

The speech would remind us all that all power corrupts and absolute power corrupts absolutely, and that American democracy was built on this assumption. The Internet empowers governments and law enforcement agencies as well as citizens, upstart candidates, and dissidents. I would emphasize that the great challenge of our generation - as far as freedom is concerned - is to rediscover the right balance in the Internet age between society's need for security on the one hand, and the imperative of human rights and free expression on the other. Authoritarian nations obviously don't have the balance right which is why we consider them repressive. No democracy ever stops arguing internally about where the balance should be. But I would be honest about the fact that right now the world's democracies are arguing fiercely within and sometimes amongst themselves about where the right balance point should be in the Internet age. Wouldn't it be just so wonderful if the United States could take the lead in being honest rather than acting like the Lone Ranger on a white horse, much to the derision and cynicism of all my friends back in Asia, including the ones who hate their own governments?

The problem of censorship and surveillance is obviously many magnitudes worse when these things happen without a democratic political system, independent courts, and a free press. But as I've written here and here, I'm concerned that in the name of protecting children, fighting terror and preserving the intellectual property and pre-Internet business models of companies with deep pockets and powerful lobbies, Western democracies are going too far in enabling censorship and surveillance, in a way that in turn empowers and justifies what the Chinese and other authoritarian governments are doing. A few years ago China used to deny censoring because it wasn't something a government wanted to admit in polite company. Now they proudly respond to questions about their Internet policies along the lines of: "We're merely exercising our sovereign right just like everybody else. F-off."

The U.S. congress is getting energized again to make it illegal for U.S. companies to cooperate with surveillance in "internet-restricting countries" (an ever-growing list which - depending on how you define "internet-restricting" which one could argue over endlessly - includes a growing number of democracies and close U.S. trade partners). Yesterday Glenn Greenwald brought up a chillingly ironic fact about corporate collaboration with surveillance in America:

all of the sponsors of the pending bill to ban American companies from collaborating with domestic Internet spying in foreign countries -- the inspirationally-named Global Online Freedom Act of 2009 -- voted in favor of the 2008 bill to legalize what had been the illegal warrantless interception of emails and to immunize telecoms which helped our own government break the law in how it spied on Americans.

I will leave it there, and cross my fingers for Thursday. Meanwhile if you want a warm-up, I'll be speaking on a panel with Evgeny Morozov, Jim Fallows, Tim Wu and Sec. Clinton's special adviser Alec Ross at the New America Foundation tomorrow morning at 9:30am Eastern. The live webcast will be here.

December 17, 2009

Last week I attended a quiet event in San Francisco called the U.S.-China Internet Industry Forum, organized by Microsoft. This is the forum's third year - last year they met in Shanghai and the year before in Redmond. Attendees included executives from major U.S. and Chinese Internet companies, a few academics, and government officials from both countries - the highest ranking being Cai MIngzhao, Deputy Director of the Chinese Communist Party's Propaganda Department, and Robert Hormats, U.S. Undersecretary of State for Economic, Energy, and Agricultural Affairs. The event was an opportunity for key players from industry and government - from the country which invented the Internet and the country with the world's largest number of Internet users - to hold frank conversations in a relatively informal setting without the pressure of government or business negotiations. For a good part of the time, however, I felt like I was in the middle of a more sophisticated and nuanced version of this video mashup on YouTube:

For readers who don't follow all the twists and turns of Chinese Internet policy and/or understand Chinese, a bit of background. (For people who do, skip down below the jump.) Earlier this year, the Chinese government issued an edict requiring that all computers sold in China after July 1st had to come pre-installed with censorware called Green Dam-Youth Escort. While the ostensible purpose of this software was child-protection, it also censored political content and subjected users to external monitoring. (The government later backed down on this edict as a result of industry backlash.) Soon after the government edict became public a BBC journalist asked Chinese Foreign Ministry Spokesman why the government was requiring Green Dam censor-ware on all of China's computers:

"do you have any children? If you have any children or you are expecting some, you can understand the concern of the parents over the harmful Internet content. The Internet in China is open and the Chinese Government endeavors to promote sound development of the Internet. However, the Government also regulates the Internet according to law so as to safeguard the interests of the public and prevent the spread of harmful content."

The video juxtaposes Qin's statement with President Obama's remarks about the Internet at his town hall event in Shanghai:

"Think about -- when I think about my daughters, Malia and Sasha -- one is 11, one is 8 -- from their room, they can get on the Internet and they can travel to Shanghai. They can go anyplace in the world and they can learn about anything they want to learn about. And that's just an enormous power that they have. And that helps, I think, promote the kind of understanding that we talked about."

Back to the U.S.-China Internet Industry Forum. Much of the day-and-a-half long forum was under the Chatham House Rule, which means that participants can report on what was said but can't attribute anything directly. There were, however, several on-the-record keynote speeches. Cai and Hormats echoed the Qin-Obama riff. Here is how Xinhua News Agency reported Cai's speech:

An important part of network security was to ensure the security of online information, said Cai Mingzhao, former deputy director of China's State Council Information Office and an adviser to the Internet Society of China [note: they omitted his Communist Party post], which co-hosted the one-and-a-half-day forum with Microsoft Corporation.

Pornography, fraud, spam, online attacks and computer viruses were serious threats to information security and were impairing the public's confidence in the Internet, he said in a keynote speech on Thursday.

"Under such circumstances, it is not enough to emphasize the free flow of information alone. Information security should be put in a prominent position," Cai told an audience
of more than 100 government officials, business leaders, academics and other representatives from both countries.

"If network information security is not guaranteed, the information flow will become irregular. If illegal and harmful information are allowed to flow rampantly without checks, it will do great harm to the real society," he said.

Cai said the first priority of ensuring online security should be protecting adolescents, as teenagers had become the largest online group and whose growth was increasingly influenced by the Internet.

Each country has its own unique
circumstances, differing from each other in Internet penetration,
economic and social development, cultural traditions and laws, Cai
said, adding that ensuring online security should fully respect the
cultural diversity and concerns of all countries.

"Therefore, Internet security
around the world is unable to be measured by a unified standard. It is
impossible to regulate security with a single law or manage it in a
single pattern," Cai said.

What Xinhua did not report is that Cai called for the U.S. and China to move beyond differences and instead work together on four issues of common concern: Child protection, online intellectual property protection, spam, and cyber-security. He called on the two sides to create specific bilateral workstreams focused on these issues.

Hormats, on the other hand, spoke of common ground but also made it clear that the differences are meaningful. While Chinese media covered Cai's remarks, they did not mention any elements of Hormats' talk that differed from Cai's views. No U.S. media appear to have reported on the forum at all - at least not on news outlets available to the public domain. The State Department has not released a transcripts of his remarks either. I took notes and made a recording of his on-the-record speech in which Hormats emphasized that Internet freedom is important to the U.S. government. Here is an extended excerpt of the portion of the speech devoted to free expression (with relevant links added):

...The Internet offers us an unparalleled opportunity to acquire knowledge if we allow ourselves unrestricted access to it. As president Obama noted in his townhall meeting, freely flowing information allows people to think for themselves and to generate new ideas. It also encourages a great deal of creativity. this is true not only politically but also economically. The internet has produced entire new industries and revolutionized distribution of design and development of both goods and services. Unrestricted access to information is vital to the types of innovation that spark economic growth.

...It is the users and developers of online content who make our connections to the world wide web so valuable. Secretary Clinton has made improved access to information a significant part of her policy focus. She stated in a recent speech: "President Obama and i are committed to defending freedom of expression on the new terrain of the 21st century." Within the State Department our newly revitalized Global Internet Freedom Taskforce is ready to play a leading role in this critical effort. The task force, a policy coordinating body within the state department, co-chaired by myself and the State Department's Undersecretary for Democracy and Global Affairs Maria Otero, works to advance free expression and access to information on the Internet. The State Department monitors and reports on threats to Internet freedom around the world. It pursues the free flow of information and freedom of expression on the Internet in our bilateral relationship and through multilateral organizations as well.

The right to freedom of expression and the importance of the free flow of information over the Internet were confirmed by all participating governments at both phases of the World Summit on the Information Society in 2003 and then again in 2005, including the Tunis Commitment, and continue to form the foundation of U.S. government efforts on Internet freedom throughout the world.

We also work closely with individual companies and industry groups to foster improved access to information. one example is the Global Network Initiative, a group of leading private sector companies, NGO's, academicians and investors, that seeks to advance both freedom of expression and privacy in information and communication technologies. A number of the authors and leading advocates of the GNI are represented here today, and i commend them for their vision and their initiative. As president obama noted in his town hall meeting in Shanghai, we believe that certain core principles enshrined in our founding documents are universal rights also present in international documents like the universal declaration of human rights and we speak out for these principles around the world

We believe that commerce should be open and the information should generally be freely accessible. we recognize that potential downsides and risks may come with new technology, such as threats to children and online ability of terrorists to use the internet to organize. we look forward to working with China and the private sector both here and abroad to mitigate these risks while maximizing the free flow of information.

Hormats commended China for embracing the Internet and the global telecommunications revolution. He spoke at some length about the importance of the Internet in economic growth and recovery around the world. He also expressed concern about barriers erected by Chinese regulators against U.S. companies entering or fairly competing in the Chinese market. Later in the speech he also emphasized the importance of child protection, cyber security, and protecting intellectual property. If a full transcript of the speech becomes available later I will link to it here. (Update 12/19: An overview post about the forum by Microsoft VP Pamela Passman can be found here, and the transcript of a speech by Microsoft's Chief Research and Strategy Officer Craig Mundie is here.)

In a closed door session devoted to Internet governance later that morning (which, according to the Chatham House Rule I can report on in general as long as I don't quote or attribute anybody directly), another Chinese official and another U.S. official outlined their governments' positions, with corporate and academic participants also contributing.

The Chinese side emphasized that if Americans better understood the challenges faced by the Chinese government in maintaining social order, and if they realized that Chinese citizens hold high expectations toward their government in that regard, Americans would be more sympathetic to the Chinese government's policy choices and actions. Social problems tend to be amplified online and if people are allowed to do whatever they want on the Chinese Internet that would disrupt social stability, which they pointed out is in nobody's interest, and - given the Chinese Internet's size - isn't conducive to shared global goals of child protection, cyber-security and intellectual property protection anyway. They appealed to the Americans to focus more on commonalities and not try to impose their values on everybody else.

The U.S. side focused more specifically on the future of global Internet governance, emphasizing three overarching goals: interconnectivity, free flow of information, and preserving the Internet's "dynamism." The best way of preserving that dynamism is to "leave it alone" as much as possible, and specifically not to put Internet governance in the hands of an "intergovernmental institution." The U.S. government supports a multistakeholder approach with a leading role for ICANN accompanied by a renewed mandate for the Internet Governance Forum. Putting Internet governance in the hands of inter-government bodies such as the U.N.'s International Telecommunications Union is not desirable because such institutions can't keep up with the pace of technological change. Restrictions on the free flow of information should be a "rare exception" in very narrowly defined cases of child pornography, human trafficking, and terrorism. Errors of under-reaction and over-reaction can only be achieved through continuous dialogue between public and private sectors.

Asked to make some brief comments, I suggested that we combine components of both Chinese and U.S. suggestions made that day. Why not set up U.S.-China "work streams" to drill down on problem-solving in specific areas Mr. Cai suggested like cyber-security, child protection, and intellectual property. But as both Hormats and other U.S. officials pointed out, the Internet is what it is today not just thanks to the efforts of governments and big Internet companies, but because of the actions and choices of small entrepreneurs and individual Internet users of all kinds. Therefore it only makes sense that such work streams should be truly multi-stakeholder in nature, including members of civil society, representatives of user groups, consumer groups, open source programming groups, and other stakeholders - because after all, no solutions to any of the problems discussed are going to succeed without broad-based support and buy-in from netizens around the globe. Models for multi-stakeholder problem-solving are still in their infancy and have much room for improvement (as neither members of civil society nor the Chinese government hesitate to point out). So why not experiment with using bilateral meetings as an opportunity to improve on the multi-stakeholder model - in a more narrow situation involving only two cultures, instead of hundreds? A number of American heads nodded. I did not detect a positive reaction to this idea from the Chinese side. They did tell me that they wished my criticism of their censorship would be better balanced by an explanation of all the reasons why they need to do what they do. A corporate person asked me what might be done to help bridge misunderstandings between the two countries. I suggested that more direct dialogue between citizens of both countries - and more platforms to facilitate such interaction - would be helpful.

Of course, the problem is that the Chinese citizens participating in such citizen dialogue may not necessarily be in lockstep with their government's positions... And oh yeah, you don't really need to build anything new or special because there are all kinds of great social networking platforms like Twitter and Facebook out there... But wait they're blocked in China so Americans only wind up interacting with the most determined Chinese Internet users who are angry about censorship and figured out how to use circumvention tools....Which is why in another keynote speech at the forum, Wikipedia founder Jimmy Wales argued that the best way for China to get its story out is to let its citizens communicate with the world through unblocked platforms...

Ella Koon has parked her website at a ".asia" domain. Edmon Chung, DotAsia's CEO, has been encouraging ".asia" clients to use Creative Commons licenses whenever it makes sense to do so. For Ella Koon, it makes a great deal of sense to release photos with "some rights reserved" instead of "all rights reserved" so that her fans can legally share her pictures and create fan art with them, as long as they attribute the original source. Since she has used a non-commercial license, that means for-profit media can't freely use the photos without permission or (if she demands it) payment, just as in the traditional "all rights reserved." But fans are free to use them as they wish, as long as they don't try to sell them and adhere to the "share alike" requirement and share any new works under the same kind of CC license.

Until now, though, Hong Kong users haven't been able to use CC licenses localized under Hong Kong law. On Saturday that will change with the launch of CC Hong Kong. With licenses adapted by Hong Kong IP lawyers to stand up in Hong Kong court, web businesses like the Hong Kong-based blogging portal MySinablog are getting ready to make them available as a publishing option for their users.

If you'd like to learn more about how you can use Creative Commons or just want to know what's been keeping me so busy over the past few months, please join us for our launch ceremony and festival celebration on Saturday at the HKICC Lee Shau Kee School of Creativity, 135 Junction Road, Kowloon.

Or perhaps a stronger incentive might be a chance to meet CC founder Lawrence Lessig and CC's current CEO Joi Ito? Nutshell schedule:

Full program with a lot more details can be downloaded here (PDF). Maps, directions, and online registration here.

And that's not all: On Friday from 5-6:30pm come hear Prof. Lessig give a public lecture titled: "Free Culture and Free Society: Can the West Love Both?" Lessig has just come out with a new book, Remix.

Another exciting development: DotAsia has just announced a new partnership with Creative Commons to help promote the use of CC licenses in Asia, and to help facilitate more active collaboration between CC-user communities in different Asian countries. A new website, creativecommons.asia, has just been set up. The plan is for the new CC Asia site to serve as a hub and platform for Asia-wide creative collaboration.

Still not entirely sure what CC is all about? Here's a gorgeous new video, "A shared culture" in which CC's founders and key community members talk about the philosophy behind it:

Weve built the number two, number three infrastructure in the world over the last ten years. So what are we going to do with it? Now, if we're going to have a not very forward-looking copyright regime that binds us, shackles us, it's quite clear that the creative community in Hong Kong - music, film, the arts - their ability to mix, mash, be creative is somehow not factored in to the current view of the law. So all we're trying to do is say, look. It's not necessarily "all rights reserved," it's also "some rights reserved." Lets try and use the existing copyright regime and make licensing - look at the licensing aspect. Not everyone by nature wants to fall foul of copyright law, but give us some options. It's not that we don't want to obey the law, its that we do want to have a license, but make it easier for us to get a license. Furthermore, give us some choices as far as the types of license we can get. Therefore Creative Commons has been around, weve looked at it we all know it. Many of us who are involved in the industry worldwide have said "hey look its quite strange we don't have Creative Commons in Hong Kong." Why not? Why don't we go and do it? So that's what we've done."

...Hong Kong is one of the freest economies in the world. So let the market decide. The Creative Commons license should be there by default. Once it's there then we can start doing things that are very interesting... This is a starting point not an ending point.

JOI:

...The problem is that the mass production and delivery of content is the main model that people want to use the internet for, but then you might as well use cable. That's fine for broadcast thats not a bad architecture... but the internet is really for peer to peer communication. And the problem is that if you don't create a legal regime that allows you to do it, people will do it anyway but it will be illegal. And so by causing people to do illegal things, its also one of these thing where people figure well, if I'm breaking the law anyway.. I might as well go all the way. So the minute you make people into pirates, you call them criminals and terrorists like they did in the United States, then theyre going to come back at you, they're going to attack you, they're going to treat you like the man. So what Creative Commons is trying to do is get everybody to the table, get everybody to follow the rule of law, respect each other's needs, and say everyone has the right to have a choice.

...What you're fighting for right now is the attention of a person.

...Whats really a pity is that this Hollywood regime is infecting other governments into thinking that by having a strong copyright regime they will encourage the content business. When in fact by encouraging the amateur business they may sell more video cameras and televisions and network connections and bandwith, and we would probably make a lot more money supporting the sharing economy in asia than we would trying to build a hollywood inside Hong Kong.

August 01, 2007

In case you haven't heard of it before, Creative Commons is an alternative approach to copyright. In this Internet age, many people are creating and sharing their works for non-commercial or only partially commercial reasons. The point is not to advocate piracy: many artists, authors, entertainment companies and news organizations want tight control over the usage rights to their work so that they can make maximum profit from every single thing they create, and they have a right to do so. (Although CC founder Larry Lessig does think that U.S. copyright law has gone overboard.) But many other people are more interested in seeing their works used and distributed as widely as possible than they are in making money off those works, as long as they receive credit and recognition for their creations. Creative Commons licensesenable us to do this. CC is especially useful for non-profit, publicly funded, and educational content, but there are commercial artists and Internet companies who also use these licenses. I know musicians and photographers who have found it profitable to put out at least part of their work for free on the web under a CC license because doing so helps them gain a loyal audience and reputation, which in turn leads to paid work or performance opportunities that they would not have gotten otherwise.

The CC licenses are being localized for a growing number of legal jurisdictions, including for Mainland China and Taiwan. But nobody has yet localized them for Hong Kong. Our meeting on Monday formed a group that will spearhead the localization of Creative Commons licenses for Hong Kong law, then work on promoting the use of CC in Hong Kong and educate people in Hong Kong about how to use them. We've set up a wiki site with more information, which anybody interested in helping bring Creative Commons to Hong Kong can join.

Here is an excellent video that explains Creative Commons:

...and here is an interview with Creative Commons founder Larry Lessig about how it all works:

He asks: "Should we turn into criminals the future pillars of our society? Should we slow development of internet services to protect creators of digital content? Should we sacrifice privacy, free speech and a free press in the name of copyright protection?"

Then he answers: "While the copyright holders' concerns are understandable, some of the medicine prescribed in the paper is, unfortunately, worse than the diseases it claims exist." (emphasis mine)

The SCMP puts their articles behind a paid firewall, but we have reproduced the whole thing for your reading pleasure here. (Peter holds the copyright for the piece, in case you were wondering.)

I was tickled pink to discover today that when I went to Google and typed in: hong kong digital copyright, Peter's position paper is the first result, followed by my blog posts on the subject - all ahead of the government consultation document! That means Peter and I are getting more incoming links than the government document. (Screenshot below for posterity.)

This is why I keep telling people: if you want to get attention on a policy issue you care about, you need to put your position papers on the web, you need to make them blogger-friendly and get bloggers linking to them, and ideally you need to be blogging about them yourself. Getting media coverage and putting articles in the newspaper is not enough, especially if those media organizations don't make their content freely available on the web.

...this position paper addresses issues that lie at the intersection of copyright reform and the protection of free speech, free press, and privacy. In particular, the paper examines the benefits and shortcomings of criminal liability for unauthorized uploading and downloading of copyrighted works, a notice and takedown procedure for online service providers, a subpoena mechanism to facilitate copyright infringement actions, and statutory damages for copyright infringement. In addition to offering recommendations on whether and how copyright law should be revised, the paper also highlights the opportunities for Hong Kong created by the digital revolution. The paper contends that, if Hong Kong is to further develop its knowledge-based economy and to become a regional hub for digital technology, it needs to define copyright reform more broadly to include future authors, user communities, and not-for-profit organizations.

* Introduce a format shifting exception that would allow copyright holders to reproduce legitimately purchased copyrighted works in different formats.

* Introduce a ‘safe harbour' for innovators to develop products that are capable of substantial non-infringing use.

* Introduce a special exception for the use of online materials by educational and research institutions.

* Broaden the privilege for unauthorized use of online materials for news reporting purposes.

* Explore the use of levies to facilitate private copying.

* Facilitate the use of orphan works on the Internet. (Orphan works are works for which their authors can no longer be found.)

* Explore government support of open access initiatives and new flexible copyright regimes. Examples of these initiatives include open format for government documents, open access journals, and Creative Commons.

* Facilitate interoperability of new communications software, platforms, and technologies.

* Limit the protection of government works in the digital environment. Government works should be freely available for reproduction and distribution on the Internet.

The advent of the Internet and new communications technologies has posed serious challenges to copyright holders. However, it has also created many new opportunities. Indeed, through the use of these technologies, people can now converse with others via e-mail and online chats, look up information in virtual libraries, increase knowledge by taking distance-learning courses, publish social commentaries on their own websites, and develop social communities in the virtual world. If Hong Kong is to further develop its knowledge-based economy and to become a regional hub for digital technology (rather than a hub for only digital content), it needs to take advantage of the promise of the Internet and the opportunities innovation affords.

As in other parts of the world, there remains a very serious unauthorized copying problem on the Internet in Hong Kong. However, the solution to the problem may not necessarily be copyright law reform. As this position paper has shown, many of the reform proposals would incur significant socio-economic costs, which at times have outweighed their benefits. There are also many other effective alternative non-legislative proposals that are not mentioned in the consultation document. If policy makers are to undertake an complete and accurate assessment of the needs for copyright law reform, they cannot limit stakeholders to copyright holders and Internet services alone; instead, they need to include future authors, user communities, and not-for-profit organizations (such as schools and libraries). They also need to take advantage of the research and empirical data that have now become available abroad. The Internet today is very different from the Internet in the mid-1990s, when Internet-related legislation first emerged.

Copyright reform cannot be based on a leap of faith; it has to be based on a careful empirical assessment of the local needs, interests, and goals. A holistic copyright law reform that takes into account of the various stakeholders not only would be socially beneficial, but also would set an important example for other countries that are struggling with similar legal problems and policy challenges. Instead of staying behind or playing catch-up, a well-managed copyright law reform would move Hong Kong to the forefront of the Internet debate.

It will be interesting to see what the government actually ends up doing.

The South China Morning Post reported on Sunday that only 182 responses to the government consultation paper have been submitted. Five from organizations and 177 from individuals.

InMedia and OpenKnowledge are calling on the government to re-do the consultation.
Why? Because not enough has been done to solicit public response.
Their position paper can be downloaded in Chinese as a PDF here. Among other things, they call for the government to include consideration of flexible copyright systems (like Creative Commons)
and the concept of fair use in a revised consultation. They are also
opposed to the criminalization of downloading by individuals,
nonprofits, and educational institutions.

Meanwhile, here in academia land we are preparing out own submission. Intellectual property law professor Peter Yu and Charles Mok, head of the Hong Kong Internet Society, spoke at a seminar here at Hong Kong University last Thursday. They pointed to a lot of ways in which the proposed legal changes would be potentially harmful to freedom of expression in Hong Kong.

In his talk last week, Peter made a strong case that the people of Hong Kong should be concerned about over-enthusiastic emulation of the DMCA. In the U.S. the DMCA has been prone to intentional abuse by those who want to silence critics and whistle-blowers. (For details read this PDF document.) Peter pointed to specific cases in which companies have abused the DMCA to get service providers to take down content that was simply critical of them or which advertised competitive pricing, wrongfully claiming copyright violation in order to get the content removed. How do we guard against companies here in Hong Kong doing the same thing to use copyright as an excuse to silence critical consumer groups? What's more, copying the DMCA too closely here in Hong Kong could result not only in companies, but also other powerful "copyright holding entities" (which is pretty much anybody) using exaggerated allegations of copyright violation to silence speech they don't like. How will the Hong Kong government prevent such abuses? The consultation document does not say.

Another issue has to do with the consultation document's approach to criminal liability. He believes that the punishment needs to be more "proportional" to the actual harm committed. Which means that people who are file sharing and downloading for non-commercial reasons should not be treated in the same way as people who are doing so for direct financial benefit. Otherwise, you are turning most of Hong Kong's population technically into criminals, and certainly most of its young people. What are the consequences of this?

Peter didn't say this outright, but a couple of questions arise in my mind, also unanswered by the consultation document: Might the existence of illegally obtained movies on the hard drive of a government critic be used as an excuse to put him in jail??? What about a journalist who does a hard-hitting, muckraking report? Might she get a call from somebody the night before it is published saying "Greetings. We have learned from your ISP that somebody using your home computer downloaded 100 songs illegally in the last month. (meaningful silence)...."

In Peter's view, copyright reform is not the only way to address the issues Hong Kong's entertainment industry faces. What's more, the digital environment should not just be defined as a commercial environment: it also includes digital lifestyle, access to knowledge, political discourse, and many other things. The government has an opportunity to take advantage of the Internet's promise - and the opportunities for innovation it affords. Not just approach it as a threat to some of Hong Kong's most vocal industries. Any new laws that do get passed need to be based "on empirical research rather than a leap of faith." More alternatives need to be explored. There is no upside to acting too hastily if you are taking the interests of all Hong Kong people to heart.

Charles Mok also emphasized that the consultation document does not adequately deal with protection of the rights of Internet users. Assuming the government here believes they should have some. People in Hong Kong should be entitled to fair use of material for educational purposes and also in the context of political and social criticism. He cites the UK's independent review of intellectual property, called the Gowers Review of Intellectual Property, which was much more comprehensive in the way that it addressed users' rights and the question of fair use.

Mok points out that the entertainment industry in Hong Kong is one big cartel. Is it the Hong Kong government's job to protect its cartels? Or shouldn't its responsibility be more broadly towards the rights and long-term interests of the Hong Kong people?

He also points out that if ISP's are required to retain more user data in order to help catch copyright violators, the possibility for abuse of that information also increases. "The more data you keep, the more likelihood of a screwup," he said. Indeed.

InMedia and OpenKnowledge, plus some other groups, say they are planning to organize a collective submission action to the Commerce and Trade Bureau this Friday. If you are writing a submission yourself, they ask that you "cc:" it to openknowledghk AT gmail DOT com so that they can include it in the submission tally of critical responses.

As Sunday's SCMP article pointed out, a lot of Hong Kong internet users are concerned, but so far they have been voicing their concerns in more informal ways, such as this protest video posted on YouTube:

UPDATE (April 25): I don't know how I missed this but Oiwan Lam reports over at Global Voices that a group of Hong Kong netizens have organized a new Chinese-language BBS forum about this issue, article23.net. She writes:

The organizers compared the proposal in the government digital
copyright consultation as the notorious article 23 in Basic Law which
led to half a milion people demonstration in 2003. The BBS forum is to
share information concerning digital copyright issue and possible
mobilization against the copyright legislation.